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AHLA's Speaking of Health Law
Hot Topics in Medicare: What to Expect in 2026
Daniel Hettich, Partner, King & Spalding LLP, Emily Cook, Partner, McDermott Will & Schulte, Elizabeth Lippincott, Managing Member, Strategic Health Law, and Susan Banks, Partner, Holland & Knight LLP, discuss some of the latest trends and developments in the world of Medicare, as well as what to expect in 2026. They cover issues related to Part A, Part C (Medicare Advantage), fraud and abuse, and appeals and arbitration. Daniel was Faculty Chair, and Emily, Elizabeth, and Susan were Faculty members, of AHLA’s new Medicare 101 Course.
Watch this episode: https://www.youtube.com/watch?v=kQ5q_WxdItg
Learn more about AHLA’s Medicare 101 Course: https://www.americanhealthlaw.org/education-events/101-online-courses/medicare-101
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SPEAKER_00:Hello everyone. I'm Dan Heddock. I'm a partner in King and Swalding's healthcare practice resident in Washington, D.C. I'm uh hosting this podcast because I was faculty chair of uh AHLA's Medicare 101 on demand course. Um I'm very excited to be joined by three of the faculty, three other faculty members uh for that call course. If you haven't seen it yet, it's uh a 10-module um 101 course, as as the name indicates, that you can take at your own pace. And I'll let each of the other faculty members introduce themselves, but I'll just say by way of overview that we're gonna be covering um the part A of the Medicare program, which covers uh inpatient, uh hospital inpatient care. Uh part C, also known as Medicare Advantage. Uh, we have the faculty member who did that module with us. And then uh Medicare fraud and abuse, obviously an important topic. Um and then finally, my module we'll talk about just a little bit. I handled the uh appeals and arbitration um area, so areas of controversy within Medicare. But with that, I'll turn it over to my other faculty members. Maybe Emily, could you uh kick us off, introduce yourself?
SPEAKER_02:Great, thank you, Dan. I'm Emily Cook. I'm a partner with McDermott Will and Schulte in our Los Angeles office, and have been working for quite some time with providers who receive payment from Medicare, and I'm excited to talk with uh all of you today about those coverage and uh other rules.
SPEAKER_00:Thanks, Emily. Elizabeth?
SPEAKER_03:Yeah, hi. Um thanks, Dan. I'm Elizabeth Lippincott. I'm managing member of Strategic Health Law, and I have been doing um managed care work for 25 years and founded this law firm 20 years ago, and have been um focusing primarily on government managed care plans, particularly Medicare Advantage and Part D for that time period.
SPEAKER_04:Susan? Thanks, Dan. I am Susan Banks. I'm a partner at Holland Knight in the Denver office, and I specialize in Medicare reimbursement and payment issues. And I had the opportunity to deliver the module at the med on the 101 course on Medicare fraud and abuse topics. So I'm looking forward to discussing it with you all.
SPEAKER_00:Great. Well, I'll ask my first question, I think will be the same for all of you. I think for 101 it makes sense. If each of you could give us kind of a nutshell of your topic, obviously, you know, there's I know there's a lot to be said on each of those topics, but really what a lawyer in this space would need to know to be to be competent. Um Emily, you handled the the Part A um module about Medicare inpatient. Maybe I'll start with you.
SPEAKER_02:Sure. Medicare Part A generally is considered to be the component of the Medicare program that covers what are often referred to as facility services. So primarily when you think of Part A, most people are going to think of general acute care inpatient hospital services. Although it is uh quite a bit more broad, Medicare Part A also covers home health, hospice, end-stage renal disease, and actually quite a few other services. So while the general uh approach to Part A is that it is covering hospital inpatient services, it is uh quite a bit more broad than that.
SPEAKER_00:Great. Thank you, Emily. Um Elizabeth, maybe can you tell us about Part C? What is what do folks need to know to be competent about Medicare Part C?
SPEAKER_03:Yeah, I think the most important thing in Medicare Part C is just to know what the universe of regulations and guidance is and to be aware of the primacy of subregulatory guidance and um to know how important it is. Um and and it we use the word guidance, but because for the Medicare Advantage organizations, they are required in their contracts to comply with guidance. Guidance is really a misnomer. They're requirements for the plan and for their that's flowed down to their vendors and providers. So really knowing how to access the voluminous manuals as updated memos, um, QAs, reporting guidance, just thousands of pages of instructions is probably the most important thing. So at least you know where to look and know that whatever random question you might have, there's probably an answer somewhere or somehow it's addressed. There's a decent chance. It's just so highly regulated. Um, it's it's pretty intense in terms of the requirements and how granular they are.
SPEAKER_00:Right. Susan, what what would your answer be for fraud and abuse?
SPEAKER_04:You know, I Medicare fraud and abuse or federal healthcare program fraud and abuse broadly. Um, a lot of it is is uh based on it, it's it's grounded in a lot of the same types of materials that Elizabeth was just referencing, right? These are the broad federal and state law analogs, statutory regulatory frameworks that police uh improper business contact conduct in the healthcare arena, right? So everything from um uh over-billing, uh improper billing, billing the wrong services, uh, to providing too many services, medically unnecessary services, or uh worthless services, right? When when services fall below a certain threshold so that they're not even good and valuable services. Um so the fraud and abuse laws are um broad. The penalties associated with violating them are um can be truly enormous. Everything from um you know overpayment penalties and and damages associated with billing incorrectly to um potential stays in prison for for more significant conduct that violates the laws. So, you know, to Elizabeth's point, in such a highly regulated industry, I think where we see things go wrong, even even the most well-meaning providers and suppliers get it wrong sometimes. And and the folks who are per potentially newer, newer entrants into the market, who've transitioned from other business lines maybe into the healthcare space, and there's there's a bit of a learning curve. There's there's a lot to be aware of in in the healthcare arena that uh may not be intuitive always.
SPEAKER_00:Right. Well, I'll answer my own question for the appeals and arbitration area. I think um obviously there's a lot that could be said, um, as I alluded to, but I think one of the things, one of the fundamental aspects to be aware of is that each of the different parts of Medicare, and we kind of alluded to it, maybe we should have said a little bit more about it, but part A is only says primarily inpatient, part B is more outpatient physician services, part C is the managed care with the private companies, part D, which we won't be talking too much about today, but focuses on prescription drugs. And each of those areas have their own appeal mechanism. Um part A generally goes through if a hospital has a complaint about how Medicare is reimbursing for inpatient services, those usually would run through the provider reimbursement review board. That's where I spend most of my time. Um Part C, for example, is an entirely different animal. Usually it's governed by contractual language and usually more arbitration, as uh Elizabeth alluded to. Um Part D, another unique uh animal. Actually, there's been a recent appeal mechanism for when there's disputes between drug manufacturers and uh uh typically hospitals who receive discounts, the 340B program. Um so I think maybe one fundamental takeaway for folks there is that there's a different, then there's also the um DAB and ALJ appeal process for individual services. So I think at the highest level, folks should be aware that there are different uh appeal mechanisms, uh sometimes very different, for each of those programs. If we have a little bit time later, I might talk a little bit more about again part A appeals, which is where I spend my time. But Emily, I did want to go back to you. I know you alluded to already that, you know, as we said a couple of times now, part A is primarily inpatient care, but encompasses other stuff like hospice, et cetera. Who determines what is and is not covered by Part A, by Medicare Part A?
SPEAKER_02:Sure. So there is a hierarchy of uh who determines what is covered. And I think uh building on what uh Elizabeth was mentioning about guidance, um, in the Part A space, uh, we always start with the statute. Uh so we will first look to see what Congress has said about what is covered by Medicare and what isn't. Uh they don't say a lot about it. Most of the information that comes from the statute is at a very high level and does not provide the necessary granularity to understand in any particular instance what is or is not covered. And then we look at the regulations. And while the regulations, as you would expect, are somewhat more detailed, particularly in the Medicare Part A space. They provide very little insight to whether a particular service, and typically the part A we're talking about a stay rather than an individual service. So a particular patient's day at a facility is covered. So then we look to the guidance, uh, and we may get some more information in the guidance in the Medicare space across all parts of Medicare. The guidance is something that we use very, very frequently and more frequently than the statutes or the regulations. Um, and in part A, we also see quite a lot of information coming from the Medicare administrative contractors. Those are companies that have contracted with the Centers for Medicare and Medicaid Services to actually administer the Medicare program. And they themselves issue guidance that provides information about coverage, particularly what are known as national coverage determinations and local coverage determinations. So in any given instance, when we are trying to determine whether a particular part, a service or stay is covered, there is uh quite a bit of material that needs to be reviewed, again, starting with the statute, ending with uh the Medicare administrative contractor guidance.
SPEAKER_00:Great. Elizabeth, I'm curious if you have thoughts. Um, I mean based on what Emily said, and I think there's often a lot of confusion about what's similar with part C compared to part A, what's different, how much of that that Emily described with the statute regulations policy, does that apply at all under Part C? Um, how is Part C different from Part A? How is it the same?
SPEAKER_03:It's very similar in terms of the you know tiering of statutory um authority regulations. And I would add, um it's it's really important in reviewing the regulations that you sort of do the regulatory history and look back at the we've got a um an index of it's incredible how many times these have been updated. And there's a lot of good commentary in there that I think of as guidance or kind of regulatory history, and then um the manuals, the part C manuals, and then another wrinkle that does tie back to what Emily was talking about with the um national and local coverage determinations in original Medicare. So for Medicare Advantage plans, they are um underwritten and administered by private insurance companies. Um, however, the floor for benefits is what is covered by um original Medicare. So for inpatient, it's part A. And CMS has clarified in the last few years, this has always been the case, but they've they've sort of added to their interpretation that coverage rules from Part A have to be adhered to by Part C Medicare Advantage plans. Payment rules generally speaking do not. So the payment for in-network providers is um determined in the contract between the Part C plan and the provider, in this case, the hospital. However, um according to CMS, more and more things that we historically thought of as payment rules, not necessarily applicable, are now being treated as coverage rules if they um determine someone's access to um coverage in an inpatient setting. So there is overlap, and I would say over the last couple of years, that overlap has grown because of that um emphasis from the regulators.
SPEAKER_00:Right. And Susan, I imagine there are times where folks don't follow all the statutes, regulations, and policies that uh Emily and Elizabeth alluded to. Uh is that where the False Claims Act uh kind of kicks in?
SPEAKER_04:Yes, often, right? The False Claims Act remains one of the biggest enforcement tools and most prevalent enforcement tools that are used by um by regulators in this space. It's um it's it's I was gonna say unique. I don't know that it's unique, but but it's an extraordinarily broad statute, right, with a wide reach in terms of conduct. And it's been um deployed with great uh success from the government's perspective, right, in in the healthcare regulatory space because of the nexus with claims submitted to the federal government. So so what the False Claims Act prohibits, just very very broadly and generally, right, it polices the submission of improper false claims to the federal government for payment. And so in the healthcare conduct context, sorry, a claim is is, I think it's it's defined intuitively mostly, right? For for most purposes, it's a it's a bill for services, an invoice for services, a claim for payment, you you submit a document that um initiates a payment by the government. And what the False Claims Act prohibits is the knowing submission of false claims. So if there's material, materially false information either on the face of the claim, you billed for a knee replacement and should have billed for a hip replacement, um materially false and facially incorrect information on the claim. Or if by merely submitting that claim you're certifying, you're making a representation to Medicare in this case that you have followed all the payment rules necessary to qualify for that payment, that's that's called an implied certification, right, of compliance. If you've submitted the claim and you know it's incorrect, which means you have actual knowledge that it's incorrect, or you are um acting in deliberate ignorance of whether or not it's incorrect, um, or um, gosh, I'm forgetting the third one. Y'all help me out. Actually, actual knowledge, deliberate ignorance, or reckless disregard.
SPEAKER_03:Reckless disregard.
SPEAKER_04:Reckless disregard, um, which is actually probably the one of the most common ones that comes up all the time. So that's funny that it should slip my mind. But if you have you are not paying attention to, right, whether in the extent to which that uh certification of compliance, the information on that claim is correct or incorrect, you've submitted a false claim. And so what false claims act litigation comes down to always is the quality of the guidance, right? Whether it's the claim is is prohibited on the face of the statute, on the face of a regulation that was duly promulgated by the agency that that prohibits the claim at issue, or states a compliance obligation that you know you didn't meet and yet you submitted the claim anyway, um, or or even down in the subregulatory context, right? So to the the extent to which and it's fascinating to dig to dig deeper down in there, but the extent to which there was other guidance that's that's not duly promulgated in a regulation, but it either is deserving of deference or or it caused, gave you reason to know that your claim would was incorrect in one way or another. Um violation of those guidelines can also form the basis of a false claim. It's it's super fact specific. It always is. Um I'll I'll pause there. There's more I could say on that, but but I want to let other folks jump in because there's some really neat differences between the part A and the Part C context.
SPEAKER_03:You made a really good point, Susan, in your comments earlier about how challenging it can be to enter this area of industry from other industries because it's so regulated and you're dealing with federal dollars and federal programs. And I I'll go out on a limb and say the biggest culture shock is for people that have um grown up in the tech industry, which is one of the least, it's not completely unregulated, but it's one of the least regulated areas of our economy outside that, you know, when you're not in the health context. Coming from tech to health, um, and I'm not saying that's bad or good, it has pros and cons, and it's probably why we've had such incredible innovation here, but coming from, you know, a tech environment into healthcare, especially in the Medicare space, you've got what you've just described with the False Claims Act, and also what you touched on, which is the interaction with the anti-kickback statute, that if you're submitting claims, you're affirming that you don't have any kickback statute violations in place. It's a criminal law and it's not totally intuitive. And there are things that might not feel morally wrong and might be normal business practices in other industries in terms of exchange of value that can get you sent to jail in this space. So it really is a very different universe. And um, these concepts are so important for people to understand um when they're doing business, you know, before they even have a before they even know they have a question.
SPEAKER_02:I think that comes up a lot for me with folks who have uh ideas about innovative care delivery models. And as you noted, there are quite a lot of uh, particularly at this point in time, emerging innovative care delivery models, but there are also scenarios in which uh someone will come up with what they believe to be a great idea about how to deliver health care that no one has come up with before. And uh I will say that uh more often than not, it is not that someone has not come up with it before, it's that it's illegal. And communicating that to folks who do not regularly work in this space can be very challenging.
SPEAKER_04:It's really true. And I think the kickback statute that you mentioned, Elizabeth, we haven't really gotten into it and we sure can in greater depth. But that's one of the areas that I think is most fascinating because some of the activity, right, this notion of incentivizing business, right? It just makes good business sense. You come from any other industry, commercial industry in the US. Um, uh, and it of course I'll offer you a discount if you'll buy more of my product, right? But as soon as you throw in federal healthcare program dollars into the mix, and what that incentive is, what that discount means is that you're going to order more of my item or service that's reimbursable by a federal health care program. Well, now you're incentivizing it now, they call it a kickback, right? Because what you're incentivizing are referrals, and and the one who's gonna pay for it is the federal government. And so there's a law to to prohibit what otherwise would just make good business sense. And I think, yeah.
SPEAKER_03:I have an anecdote. I was in a business coaching program for a while. With all people from all different kinds of businesses. And um, this great guy was a dentist. He had a very, very high-end um private paid dental practice. And something that he did is he would offer, he would have an auto-detailer come and um detail his patient's cars when they came for their appointments. And I was like, you don't take any federal money, do you? He's like, no, no. I'm like, never, ever, ever enroll with any state or federal friend. Just don't. It's you're not cut out for it, you know. But it's that kind of thing.
SPEAKER_00:Elizabeth, you have to tell me that dentist's name. I wouldn't mind having my detailed getting my teeth. Um well, you you guys alluded to it a little bit already, but maybe, maybe Susan, this is maybe most in your wheelhouse. Can you talk to us a little bit more about the penalties? I know Elizabeth alluded to jail. Obviously, that's you know unusual and probably like the worst, but what are the penalties associated with violations of um either the anti-kickback or the um false claims act? Obviously, they're different. Yeah, maybe just give us a sense of what the what the stakes are.
SPEAKER_04:Absolutely. Well, I'll I'll start with the the false claims act penalties. Um those penalties are based on and they're calculated on the basis of the amount of re the amount of remuneration that you received, the amount of payment you received in exchange for the false claim, right? So, so um baseline damages are are this single damages, right? Would be the amount of money that you that you got paid for all the claims that were found to have been false in violation of the statute. False claims that penalties can be up to treble damages, so three times that amount, and which which sounds like a lot, and it is a lot. But then also uh you can get charged um penalties on top of the trouble damages, and the penalties are per claim damages, which means for every claim that is submitted, um you can get an additional penalty amount between, I think it's around 15,000 minimum to 30,000, close to 30,000 maximum at the moment. And I don't have the exact numbers in front of me, but it's significant. I mean, so imagine, imagine a medically unnecessary UTI testing um issue, and you you end up getting uh certainly the trouble damages amount that the amount you got paid for these UTI uh urine tests that were more than more than should have been billed, right? Maybe you were testing too many services or testing too many patients. Um, so you've got trouble damages, but then every single individual claim for a urinalysis will then generate either the minimum,$15,000 per up to about$30,000 per. And those per claim penalties um really balloon very quickly, and they can they can rapidly eclipse the trouble damages amount. Um, and some of these some of these settlements and and assessed penalties are are astronomical.
SPEAKER_00:Um so that's Elizabeth, are there analogs in the Part C context? I mean, if if or because it's private contracts, is it different?
SPEAKER_03:Yes. A lot of the um well, the most high risk area in Medicare Advantage is risk adjustment, which we explain the fundamentals of in the in the course, the Part C module. But um essentially health member specific health information diagnosis codes are submitted by the plans. They originate with providers generally. They're submitted by the plans to the federal government, and um for certain um high cost diagnoses, you receive more money every month from the federal government. Those are subject to audit by the government, as well as um they are a lucrative form of um whistleblower litigation claims, um, and they're uh hotly recruited by um whistleblower plaintiffs lawyers, and we have seen settlements in the tens of millions of dollars and even beyond. Um, so uh those can be the the defendants in those can be both the plans that are um submitting those claims directly and also their vendors and their healthcare providers that are submitting data and diagnoses that are used to determine federal payment. Um, so it's a risk area for providers as well, especially if they're taking risk under value-based contracts with Medicare Advantage plans. They can be defendants in those lawsuits as well. And and it's really um thing that makes it um so risky is the um, I don't think this is the only motive for for whistleblowers, frankly, but there is a very strong profit motive where they can take home uh 15 to 30 percent of the settlement or the damages. So um strong incentive for them to bring these lawsuits, the Department of Justice can um join them or not, or intervene or not. Um, but yeah, it to answer your question, yes, definitely there's risk.
SPEAKER_00:And I will say Oh yeah, please. I was gonna ask you so go ahead.
SPEAKER_02:Sure. So I will say that um as Elizabeth alluded to, there can be whistleblower actions in the Medicare space. And that is another good source of information about the types of activities that could get uh a provider, if not in trouble with the government, uh, subject to a significant amount of administrative and financial burden. One of the very interesting aspects about the Medicare program uh and its relationship to the Federal False Claims Act and the uh key TAM or whistleblower provisions is that a whistleblower doesn't necessarily need to actually be correct in their allegations that a provider has violated the law and submitted false claims. Uh, that can still create a significant amount of burden for providers. Typically, um, whistleblowers will uh be motivated uh by the potential financial recovery in those cases and will only bring cases where they think that they are going to ultimately prevail and uh obtain uh the at least cost of their litigation and some additional uh money on top of that. But I would say I think all of us probably deal with scenarios where there are incredibly specious allegations or that the underlying uh violation is not an actual violation, and it doesn't really matter in terms of having to defend those cases. It can cost you as much to defend a case that is completely unwarranted as it does to defend a case that actually has some potential uh violations in the allegations.
SPEAKER_00:I'll I'll take just another moment to talk about the um kind of similar ideas in the appeals context, which I think is different. A lot of what we've been discussing is kind of defensive. Um usually providers are um on the defensive end of being accused of uh violating some provision. On the appeals side, it's almost the reverse of that, where um sometimes providers think that the government itself hasn't reimbursed them the way Congress or the way the statute says they should be reimbursed, or the way the agency's own regulation um says they should be uh reimbursed, for example. Um and there is this mechanism for hospitals or other providers to to appeal those determinations and challenge the agency's uh reimbursement decisions. Um and I'm focusing again, I said at the outset, like each of the different parts of the Medicare have different appeal mechanisms. This is more on the part A inpatient side. Um but in those cases, if a hospital thinks that CMS is not reimbursing as the statute of regulation um requires, they can bring these affirmative appeals that start off at the administrative level, eventually goes to the federal court, some even to the Supreme Court. Um I'll just mention one. This is my area, so it's it's it might be nerdy, but but I like it. Um so I find it fascinating. But I'll focus just on one aspect uh because I think it is important, an important sea change, um, which is this recent Supreme Court decision, historically for the past 40 years up until two years ago. Um, any type of challenge like that, the agency got a very significant deference, you know, in its its interpretation of the statute or or its own regulation. Um particularly the questions of statutory interpretation. The Supreme Court in a case called Chevron had said, unless the agency's interpretation was actively unreasonable, it didn't have to be the best. As long as it wasn't unreasonable, um, it would be upheld. Recently, the Supreme Court rolled that back, overturned the Chevron case and a case, a recent case called Loper Bright, basically leveled a playing field. So it said whoever has the best interpretation, whether it's the provider or the you know regulated community, this is beyond healthcare, this is all um agencies, but obviously has implications in healthcare. Um whoever has the best interpretation, whether it's the agency or the regulated party, that's the interpretation that should control. There's a different level of deference for regulations called our deference. That's a whole nother topic. I I could spend a long time on that, but um, but I think it's important for folks to know that that has been a very significant change of four years worth of precedent that really is still playing out. I think Loper Bright was less than two years old, so we're still beginning to see cases now percolate percolate up through court. Um that might be a good transition, kind of looking ahead, um, maybe to ask what might be the final question for folks, and I'll I'll give each of you a choice whether you want to tell us um something kind of new or interesting in your area, in the particular area that you covered, or um, you know, where you think things are headed, what you think the future has in store for part A or Part C or fraud and abuse, uh your choice. But I'll start with you, Emily. What uh Sure.
SPEAKER_02:So at the outset, I did know that uh typically when folks think about Part A, they think about facility services and services that are in a brick and mortar location, uh, particularly inpatient hospital services. And what we have been seeing over the past few years, and I anticipate will be rapidly accelerating uh in the next year and beyond, is a movement of services outside of those facilities into other locations of care. So we are seeing, for example, uh CMS's um efforts to shift care from the inpatient setting to the outpatient setting with the uh sunset of the inpatient-only list, for example. Those were services that could only be furnished as inpatient hospital services, and now to the extent that it is safe to do so, could potentially be furnished in uh outpatient settings, physician offices, or ASCs, depending on the service. Similarly, we are definitely seeing an increase in movement of services to patients in their homes. So there is the hospital at home model that has been being tested for several years now. We're also seeing uh clients start to explore other types of at-home services, um, whether it's looking at can you do SNF at home, uh, can you do some sort of home health plus that is more than home health but less than inpatient hospital? So I think we are going to continue to see really looking at Part A as a more service-based uh coverage category and less of a location-based coverage category.
SPEAKER_00:Before I move on to Elizabeth, Emily, can I follow up? Um, how much of that, if any, do you think was driven by COVID and the experience within the federal healthcare system?
SPEAKER_02:It's really interesting. I think that one thing to know about Medicare is it significantly lags behind uh the healthcare industry as a whole in terms of uh both what it recognizes as a method of care delivery and what it will cover. And during COVID, uh, because of the need to rapidly accelerate uh the way in which services were provided and covered, Medicare actually started to learn that perhaps they'd been a little bit too conservative and perhaps there were some opportunities to both increase patient satisfaction and to reduce cost to the Medicare program by covering services in different locations in different ways. I will say there are still definitely some spaces where Medicare continues to significantly lag behind the technology and the coverage from other payers. But I would hope that as they get that experience and get more comfortable with some of these innovative models, that we'll start to see them catch up a little bit in terms of some of those coverage opportunities.
SPEAKER_00:Elizabeth, how about you closing thoughts on Part C? Either something new or interesting, or maybe where you think the Part C program is going.
SPEAKER_03:Yeah, I think one of the biggest issues that affects the regulatory environment is just the growth of the Medicare population demographically, and then the growth of Medicare Part C. And there was a little bit of a delay. So, like it has grown substantially in the last 20 years from a really a niche, fairly regional managed care option program to you know more than half of people with Medicare are in Medicare Advantage. And uh people have aged. So if someone enrolled, you know, 15 years ago in Medicare Advantage, they probably weren't in the hospital that year, but maybe they, you know, now they're 80, maybe they are. So we're starting to see this huge um bolus of Medicare Advantage beneficiaries in hospitals, and that's affecting the provider community tremendously. Um, things like prior authorization are becoming hot button issues, not because they haven't always been there, but because it was a much smaller proportion of um providers, patient panels and um, you know, inpatient uh populations. So we're just gonna be hearing that all of the pain points, prior authorization, risk adjustment, uh the marketing issues that that swing back and forth. Um we will be hearing more about that um as the program continues to grow and and as the um beneficiaries in the um program continue to age and and need more intensive care.
SPEAKER_00:Elizabeth, I know you don't have a crystal ball, but do you I do actually. Okay, good. Well then you can answer. I don't really think that trend has plateaued. I mean you said it's over 50%. That that's obviously a very high percentage. Do you think is it continued to accelerate? Where do you see that going?
SPEAKER_03:It the number of people is going to continue to grow. We saw a flattening off of the growth. There was still growth last year, but it but there wasn't a growth in the growth rate, if that makes sense. So I think there is um, you know, people are shopping around, they're looking at their options. I think they understand um some of the, you know, not just the upsides, but some of the arguable downsides of Medicare Advantage, but it's not going away. Um and so I don't think it's ever gonna, I I wouldn't expect it to drop below 50%. It might climb um less quickly than some have predicted, but it's gonna continue to be a major factor in our Medicare program.
SPEAKER_00:Susan, how about you? Again, closing thoughts where things are going.
SPEAKER_04:Yeah, I I love listening to to each of my these co-presenters here talk about the part A pressures and and movements and the part C pressures and movements. Anytime you see large uh shifts, right, and how patients are managed in these various programs and how care progresses through the system, those have uh there are there are rules promulgated on the front end um and they have real financial impacts for providers on the back end, and there will be errors and there will be um misbehavior, right? And so I I will be really interested to watch the evolution of the enforcement activity, which which always lags behind, right, the care delivery changes to some extent. But um but it will be interesting to see, you know, for example, Elizabeth, in the in the Part C space, some of the pressures you mentioned on the provider community delivering care to a larger and larger population of Part C patients. Um we've started to see False Claims Act litigation against providers for causing plans to submit false claims to CMS for payment from CMS to the plans to reimburse those member lives. And now the providers are getting held liable under False Claims Act for activity that um, well, I won't say it's new, but but but but but it's it's it's increasing, right? This this pressure. Yeah, it'll be interesting to watch all of that and then to watch it all in the context of the current regulatory environment or deregulatory environment, right? The um the um distaste for agency regulations and and the advent of Loper Bright and the um the reining in of deference, judicial deference to agency rulemaking, it will be um really fascinating. I think we're gonna see a a lot of continuing activity on that front, right? Pulse claims that's not going anywhere. Um and so so the cases are gonna continue to evolve, the arguments are continue to evolve, the the judicial positions are are gonna continue to develop um one way or another. Um and it'll it'll be really, really fascinating to see where it all goes.
SPEAKER_00:Elizabeth, were you gonna add anything?
SPEAKER_03:No, I'm just nodding enthusiastically.
SPEAKER_00:Well, I'll say I already alluded to it um on the in the appeals context, and and uh Susan mentioned it again. I think in terms of looking to the future, I think the Supreme Court's recent Loper Bright decision uh is gonna be some, you know, I don't want to oversell it because really all it does is level the playing field, right? The hospital, the regulating regulated communities to less approve that they have the best interpretation of the statute. So it's by no means a slam dunk, but it really does remove that very large thumb on the scale in favor of agency interpretations. I also just one other comment in the appeals context, which is I think historically the appeals were focused on there are many adjustments, right? Medicare part A payment in theory is you know rather simple. There's a standardized amount, which is the cost between the average patient, that's multiplied by something called a DRG diagnosis-related group code, which is every um illness or injury has a DRG code associated with it to reflect whether it's cheaper or or um more expensive than the average uh patient. Um you multiply the two together and you get payment. But then there's all sorts of adjustments to that. If hospitals that are teaching hospitals get a little bit more, hospitals that treat a disproportionate share of indigenous patients get a little bit more, hospitals in higher wage areas get a little bit more. Um and each of those adjustments were subject to appeals and still are uh for decades now. Um the GME, the DISH, the wage index. I think one thing that's interesting in the past, I don't know, maybe a little over five years, are challenges to the calculation of that base rate itself. So not just the adjustments, but that that fundamental, that standardized amount that I referenced. Um and there's two big cases now, and that was calculated back in 1984, believe it or not. So um I don't know if all of us were were born then. Um but but the courts have said hospitals can challenge that, not to get more payment back in nineteen eighty four, but to fix any errors going forward. Um and so there's some big cases now challenging again, not just the adjustments, but really the fundamental building blocks. And I think that's a good thing.
SPEAKER_03:And Dan, I was in I was in eight of your age. I was in eighth grade in 1984.
SPEAKER_00:Well, I I was born in 1984 too. I'm just gonna be a faculty member. But anyway, with that, unless there's some closing thoughts from folks, uh, I think we can wrap it up.
SPEAKER_03:I just had one thought when you were talking about the deregulation, something that's gotten really interesting in the part C space. And I think in healthcare in general, because you're doing business with the federal government, but then in part C, it's it the regulations really impact the relationship and the balance of power between plans and providers and plans and drug manufacturers. And so it's really different. Uh it's gonna be so, for example, there's this request for information out right now to um stakeholders about Medicare Advantage, like how can we deregulate and make and streamline this? And it'll be really interesting to see how the provider community potentially expresses like, could you not? You know, or maybe be really careful. Um it's a very dynamic, complicated.
SPEAKER_04:It's a double-edged sword, right? Because on the one hand, less regulation equals more freedom, maybe, but it's it's it also equals a lot of uncertainty. Um and and uh these are issues that have been long settled for a long time, and it's it's not necessarily helpful, right? To to the provider community or to anyone to eviscerate the the entire encyclopedic body of guidance.
SPEAKER_03:You want to be careful.
SPEAKER_04:I think that's a good point.
SPEAKER_00:Well, on that note, I think we'll wrap it up. I hope folks enjoyed the podcast. As I alluded to at the outset, there's a whole uh 101 course. This is we represent four of the 10 modules. There's others focused on part B, which obviously we didn't talk about. One of the modules was on the future of Medicare, talking specifically about some of these issues, about the demographic trends. Uh, but thank you. Hope you enjoyed and take care.
SPEAKER_03:Thanks, everyone. Thanks. I appreciate it. Hi. Bye.
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